Was It a Success? Alyza Lewin Reflects On Rubashkin Appeal Hearing

Alyza D. Lewin is a partner with her father Nat Lewin (pictured) and practices law together with him at Lewin & Lewin, LLP. The firm specializes in litigation and government relations and represents Sholom Mordechai Rubashkin. Her father recently made oral arguments in the appeal. Rubashkin received a 27 year sentence. Ms. Lewin spoke with Ami Magazine regarding the case.

1] There is a difference, of course, between the administration of justice and that of law. Your firm strongly believes that in the Rubashkin case this difference is vast. Can you discuss this?

I wouldn’t say that there’s a difference between the “administration of justice and . .. law.” Rather, the hope and expectation of each defendant is that in his/her case, justice will be administered fairly. In Sholom Rubashkin’s situation, this was not the case. He did not receive a fair trial or a fair sentence. Our hope is that the Court of Appeals will recognize and correct this injustice.

2] It seems that oral arguments play a significant role in the appeals process – at least in this one. Is that correct? Can you familiarize our readers with what oral arguments are and why they play such an important role in our justice system.

Oral arguments provide the opportunity for attorneys to clarify their positions and answer specific questions that the judges may have. They provide the attorney with an additional opportunity (after the briefs have been filed) to convince the judges of the merits of the attorney’s position. Well done oral arguments can be very helpful. There is also a risk, however. The common wisdom is that cases are more often “lost” than “won” at oral argument. In other words, most oral arguments merely confirm for a Judge the conclusion that he/she has based on their reading of the filed briefs. A poorly presented oral argument, however, can be detrimental and could convince a Judge to rule against the party that made the poor presentation.

3] Some people believe that this case is a very important one in general for issues of freedom and a check on government overreaching in this country. Do you agree with this and can you elaborate?

Sholom Rubashkin’s case demonstrates risks that arise particularly in small jurisdictions where the local federal prosecutors appear regularly before the same one or two judges. In situations like Rubashkin’s, (and particularly where the judge is a former federal prosecutor), there is the risk that frequent and close communications between the judge and the prosecutors will give rise to the appearance of impropriety even if the communications are completely legitimate and proper. It is important that judges and prosecutors be sensitive to this. It is my hope, in fact, that the U.S. Department of Justice will ultimately issue guidelines (perhaps as a result of the Rubashkin case) to their Assistant US Attorneys advising them that in situations like the ones that arose in the Rubashkin case, prosecutors should keep written records of their meetings and discussions with the judge and should disclose those records to defense counsel.

4] It seems that Judge Reade, as a matter of course, seems to mete out sentences far beyond the norm received by others. Not just in Rubashkin’s case but in others as well. Is there any way of using this as a means for appeal to?

Judge Reade is recognized as Judge who imposes harsh sentences. Numerous of her sentences, however, have been affirmed on appeal. We challenged on appeal the length of the sentence she imposed.

5] Your father chose to use his time in his oral arguments only on the issue of Judge Reade’s failure to recuse herself. Were there other issues he also wished to present?

At oral argument, my father focused primarily on the issue of Judge Reade’s extensive involvement in the planning of the raid. Most of the Court’s questions pertained to that issue which will undoubtedly be the most difficult and sensitive issue for the Court to decide. My father also addressed during oral argument, the money laundering counts and lengthy sentence. He touched on all the issues he had hoped to raise and answered each of the judge’s questions.

6] Many of those present felt that your father’s arguments went very very well. It seems so from the audio section of it as well. What do you think the likelihood is of at least a ten year reduction in the sentence?

Lawyers learn early on never to give predictions about the outcome of a case. We were gratified to see that the Court was engaged and grappling seriously with all the issues. We trust that the Eighth Circuit will recognize the injustice of the District Court Judge’s extensive involvement in the planning of the raid and will conclude that Sholom Rubashkin did not receive a fair trial and sentence.

7] Many people are of the opinion that one can detect character in a person’s tone or voice. Your father’s oral arguments presented a caring, passionate, yet humble man who genuinely believes in what he is saying.. Can you elaborate on this a bit?

I think you have summed up my father’s personality perfectly. He is a brilliant advocate, passionate about causes in which he believes, and truly humble. May Hashem keep him strong and healthy ad me’ah v’esrim shana so that he can continue to do the work that he does on behalf of Klal Yisrael.

8] The judge said that she was only involved in logistical considerations and yet there were many other subjects beyond that logistical coordination – why do you think that she suppressed this information at the time?

We do not know the full details of what was discussed at each of the meetings the District Court Judge had with the prosecutors and Immigration officials before the raid. The heavily redacted documents that were produced as a result of the FOIA litigation, however, suggest that the discussions went beyond logistical planning. The sheer number of meetings (at least twelve) and the references in the emails to “charging strategies” and a “final game plan” suggest that additional subjects were discussed. It is not clear why the District Court Judge and the prosecutors failed to disclose either the number of meetings or details about the content of the discussions.

9] How often is it that judges involve themselves in issues so beyond logistical coordination?

Judges are frequently involved with signing search warrants or arrest warrants before a trial. In those situations, however, the prosecutors present the Judge with an affidavit describing the facts that the prosecutors are relying upon to justify the issuance of the search or arrest warrant. In those cases, where issues beyond logistics are discussed with a judge pre-trial, there is at least the affidavit that is disclosed to defense counsel. The problem in the Rubashkin case is that it appears that issues beyond logistics were discussed but no record was kept and no details were provided to defense counsel prior to trial.

10] Why is it that Mr. Rubashkin was given the target letters that your father referred to by the US Attorneys?

Whenever the Department of Justice investigates an individual or corporate entity, it is required to send a “target letter” to that individual or entity prior to issuing a formal indictment. The target letter merely informs the individual or entity that he/she/it is the “target” of an ongoing criminal investigation. Sholom Rubashkin received two target letters. The first letter informed him that he was the target of an investigation relating to the hiring of undocumented workers at Agriprocessors. The second target letter informed him that he was a target of an investigation relating to Agriprocessor’s bank accounts and possible bank fraud. The letters were sent to him one day apart, on May 20 and May 21, 2008.

11] Does the unprecedented interest in this case by the Jewish community help this case? If so, how and how much? Is there any way that it can hurt this case and what should our readers do to limit that?

The unprecedented Jewish interest in this case is a reflection of the fact that Sholom Rubashkin has suffered a serious injustice. Thankfully, recognition of that fact is not limited to the Jewish community. Three national organizations, the National Association of Criminal Defense Lawyers (NACDL), the Iowa American Civil Liberties Union (ACLU), and the Washington Legal Foundation (WLF) together with a group of nationally recognized law professors, all filed amicus (“friend-of the court”) briefs with the Eighth Circuit in support of Sholom Rubashkin. As long as the Jewish community expresses its support in a peaceful and respectful manner, I think that support can only help. The expressions of support not only provide chizuk for Sholom Rubashkin and his family but they also continue to educate the public-at-large about the injustice that has plagued this case. I was particularly touched by the prayer services and Tehillim conference call that were organized to coincide with the time of the oral argument. The Rubashkin case has succeeded in bridging the divide between segments of the Jewish community. The idea that so many different communities were joining together to pray in support of Sholom Rubashkin was very powerful.

12] The code of ethics experts that your father came up with a fantastic point but the appeals judge kind of set that aside, unfortunately. What were your thoughts about that.

The ethics experts that we consulted with concluded that the District Court Judge and the prosecutors had engaged in misconduct by failing to keep written records of their pre-raid meetings and by failing to disclose the details of those meetings to defense counsel. I am confident that the Court of Appeals judges will give the experts’ affidavits proper consideration. During the limited time allowed for oral argument, however, the judges merely preferred to focus on other details.

13] I imagine there was an extraordinary amount of preparation that you and your father put in for this case, and he did beautifully by the way, were there any highs or lows that you felt while listening to the arguments?

It is true that our law firm has put a tremendous amount of time and energy into the Rubashkin case. I do not recall any specific “highs” or “lows” while listening to the argument. But there was a positive energy in the courtroom after the oral argument concluded. The attorneys on our team appreciated the respect and seriousness with which the judges appeared to be grappling with the issues. And the family, friends and community that came to watch the argument and show their support deeply appreciated my father’s presentation. I agree with you. I also think he did beautifully.